DACA program is in limbo in the courts after Congress fails to act, Supreme Court declines review

President Trump gave Congress until March 5, 2018 – next Monday – to enact legislation pertaining to the legal status of DREAMers after he ended President Obama’s DACA program by executive order last September.

That’s the deadline that President Trump set last September when he announced that his administration was winding down the Deferred Action for Childhood Arrivals (DACA) program, which protected young unauthorized immigrants from deportation and allowed them to work legally in the United States.

Politicians and the press have repeatedly cited March 5 as an “expiration date” of sorts to force Congress to finally find a solution for the 690,000 undocumented immigrants covered by the program.

But DACA recipients’ work permits don’t expire en masse on March 5.

The way the program actually works is far more complicated — and with it looking vanishingly unlikely that Congress will pass a bill before the March 5 “deadline,” understanding what DACA will look like after that date is more important than ever.

What March 5 means

The short answer is: not a ton.

The way some people talk about the March 5 “expiration,” you’d be forgiven for thinking that the hundreds of thousands of unauthorized immigrants protected under DACA will all lose their protections after that date — or, worse, that they’ll all be rounded up for deportation. But that’s not the case.

Politically, March 5 was important: a clear deadline that President Trump gave Congress to deal with the fate of DACA recipients. It’s all but official that Congress has failed to meet it.

But as policy — in terms of what DACA meant for immigrants — March 5 just marked an inflection point, at which the unraveling of DACA, up to that point relatively slow, would get faster.

Even without action from Congress before March 5, DACA’s end really started on September 5, 2017, when the Trump administration stopped accepting new applications for the program. Since October, approximately 122 immigrants each day have had their DACA-issued work permits expire because they were unable to apply in time for renewals.

But due to some recent court decisions, it might not end up being that many.

A pair of federal court orders — one issued in California in January, and one issued in New York in February — have slowed DACA’s unraveling by allowing DACA recipients to apply for two-year renewals again. As a result, it’s actually impossible to tell how many immigrants will lose work permits on March 6 — and how many will have new ones that last through March 2020 or later.

The courts have probably kept DACA alive for months — but probably won’t be able to keep it alive forever

In January, a federal judge in California issued an injunction against the Trump administration’s wind-down of DACA, and told US Customs and Immigration Services (USCIS) to make a reasonably timely plan to resume accepting renewal applications. The Trump administration is appealing the judge’s order — but because it’s not seeking a stay, there’s no chance for the order to be overturned in the immediate future.

In the meantime, a second judge, in New York, also issued an injunction — meaning that even if one of the two orders got overturned, USCIS would have to keep accepting and processing renewals.

The administration has asked to skip the Ninth Circuit and appeal the California order directly to the Supreme Court. The Supreme Court is set to consider the request in [conference on] Friday.

What the Trump administration is requesting is a process called “certiorari before judgment,” i.e., that the court accept review of the case without the benefit of review from lower appellate courts. This is exceedingly rare.

The Supreme Court on Monday declined to enter the national controversy over “DREAMers,” turning down the Trump administration’s request to immediately review lower court decisions that keep in place the program that protects undocumented immigrants brought here as children from deportation.

Federal district court judges in California and New York have issued nationwide injunctions against ending the program, siding with states and organizations challenging the administration’s rescission. The court orders effectively block the Trump administration from ending the program on March 5, as planned.

No court of appeals has reviewed those decisions, and it would have been exceedingly rare for the Supreme Court to take up a case without that interim step. In the past, the court has granted such cases only in matters of grave national importance, such as the controversy over President Richard Nixon’s White House tapes or solving the Iranian hostage crisis.

The litigation now will take its usual course, and it will likely be next term before the issue could return to the Supreme Court. The White House and Congress in the meantime can continue to search for a political resolution.

* * *

The administration had proposed to end the program next month. But the injunctions require the department to continue to accept renewal applications from those protected from deportation. The administration is not required to accept new applications.

Back to Dara Lind’s explanation:

In the meantime, DACA won’t be fully operational as it was before Trump’s September 2017 decision. Unauthorized immigrants who turned 15 after September 5 of last year still won’t be able to apply, and neither will immigrants who would have qualified for DACA but couldn’t afford a $495 application fee (or who didn’t apply for some other reason). But immigrants who had DACA and lost it, or are in danger of losing it, will be able to apply for renewals — and those renewals will, theoretically, be processed and granted normally.

And even if the Supreme Court (or a lower court) fully overturns the judges’ orders and allows the administration to shut down DACA again, the permits it’s handed out in the interim will still be valid.

No matter when exactly DACA is officially closed off (again), it will die slowly, a thousand deaths a day. There won’t be any handy (if artificial) “deadline” to point to as the date that Congress needs to act. Congress will need, if it acts, to somehow act on its own.

What this means for DACA recipients

Here’s how DACA is working right now:

Approximately 122 immigrants each day, since October, have had their DACA-issued work permits expire because they were unable to apply in time for renewals (after the Trump administration suddenly shortened the application window in September). That’ll add up to about 22,000 immigrants by the time we get to March 5.

Approximately 668,000 immigrants have work permits issued under DACA that won’t expire until March 5 or later.

Both of these groups of immigrants — as well as immigrants whose DACA expired between September 5, 2016, and September 5, 2017 — can apply for a two-year renewal (thanks to the court order issued in January). An unknown number of them have already applied.

As far as we know, USCIS has not yet approved any renewal applications and sent out any two-year permits since applications reopened in January. This isn’t surprising — even when DACA was in full swing, USCIS recommended that applicants give them 90 to 120 days to process a renewal application. So it is likely that some DACA recipients are watching their work permits expire while their renewals wait in the processing queue.

Immigrants whose existing DACA permits have expired haven’t been rounded up en masse by ICE. However, some have been turned over to ICE agents and put in deportation proceedings.

Here’s what will happen after March 5:

An average of 425 immigrants are currently set to lose their work permits each day from March 5 to March 31, in the absence of USCIS sending out any renewals. That pace will rocket up to over 1,000 a day starting in August. But …

Any immigrant worried about the loss of her work permit will be able to apply for a two-year renewal, at least until the court order issued in January is struck down. Some of them have already done so.

Because it’s not yet clear how long USCIS is taking to process DACA renewals, it’s not clear how much risk DACA recipients run of losing their existing work permits while they wait for the new ones to come in. If USCIS starts sending out renewed work permits before March 5, it will probably reduce the number of people losing their work permits each day by some amount; it’s more likely, given processing time, that the pace of people losing DACA will stay at its projected pace through April, and would then slow as USCIS starts sending new work permits to renewal applicants.

The lion’s share of DACA recipients will still be safe for several more months. As many as 622,000 immigrants have work permits issued under DACA that won’t expire until August 1 or later. At this pace, it would take until February 2019 for more than half of DACA recipients to lose their protections — and that pace doesn’t reflect any of the renewals that could be issued under the court order.

Hundreds of thousands of immigrants have been in a state of uncertainty and anxiety since September 2017 — and even earlier, as DACA recipients wondered what President Trump would do to them. Congress still has the power to alleviate that uncertainty. But if Congress couldn’t do so without the impetus of a deadline, it may feel even less urgency without one.

This is where we are at as of this morning after the U.S. Supreme Court declined review. This Congress will likely make excuses to do nothing on DACA before the November mid-term election.

In tangentially related news, the Supreme Court has scheduled oral argument of the Muslim travel ban in the case of Trump v. Hawaii on Wednesday, April 25.

The petition for review filed today came from the International Refugee Assistance Project, a New-York-based human rights group. The group’s request is somewhat unusual, because briefing in the Hawaii case is well underway – indeed, the federal government had already filed its opening brief two days ago. In early December 2017, the justices allowed the September 24 order to go into effect while the federal government appealed rulings by federal district judges in Hawaii and Maryland that blocked the implementation of the ban. In those December 2017 orders, the justices indicated that they expected the courts of appeals to issue their decisions “with appropriate dispatch.” The U.S. Court of Appeals for the 9th Circuit issued its ruling upholding the Hawaii district court’s decision on December 22, and on January 5 the government asked the Supreme Court to weigh in – which it agreed to do two weeks later, on January 19.

* * *

In a separate motion filed alongside its petition for review, IRAP asked the justices to act quickly, by ruling on its motion to expedite the briefing schedule by Monday and – if the motion is granted – ordering the government to respond by Wednesday, February 28. That would allow the justices to consider IRAP’s petition at their private conference on March 2, just one week from now.

This motion to expedite was not addressed by the Court in this morning’s Orders list.

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